2014 (8) TMI 851 - AT - Central Excise

Clandestine removal and under valuation - private records - presumption - whether the findings of clandestine removal or under valuation can be upheld on the basis of the entries made in such private records. - it is the contention of the Revenue that since the entries in the private records and dispatch section as also in the gate register match with each other, they are corroborative of each other and sufficient to uphold the change of clandestine removal- Held that - The Revenue has miserably failed to produce corroboration evidence on records so as to substantiate the charges of clandestine removal. Not only that, numbers of statement of various officials/employees of the appellants recorded during the course of investigation are exculpatory and for the reasons best known to the Department have not been referred to in the Show Cause Notice There are various statements explaining the meaning of the word R found in the records. Different people have given different meaning to the said word R . As such, Revenue may not be justified in decoding the meaning of R as relatable to clandestine clearance. The statement of Captain Sunil Braria is also important indicating that when the goods were not found to be as per invoice, the same were sent back and unloaded and the word R was written on the loading slips. The goods were then cleared subsequently. - Majority of demand set aside - for the remaining demand matter remanded back for verification. Undervaluation of goods - Held that - in respect of the period prior to 01.07.2000 what has to be examined is as to whether in respect of the goods on which the differential duty has been demanded, the normal price had been declared - for the period w.e.f. 01.07.2000 since the assessable value was the transaction value i.e. the assessable value would be the price actually charged by the assessee including price charged in cash over and above the invoice price. - matter remanded back. Denial of CENVAT Credit - short receipt of inputs - Held that - notwithstanding the issue of Credit Notes by the suppliers, just on account of difference in the weighment done by the suppliers and the weighment done by the recipient it cannot be alleged that the recipient had short received the material and on this basis, Cenvat Credit in respect of allegedly short received quantity cannot be denied, as the shortage could be on account of variation in weighment by different weighing machine on account of difference in their calibration more so when the suppliers had paid duty on full quantity and there is no evidence that they had sought and received the refund of duty on the alleged short receipt. - In view of decision in the matter of Bhuwalka Steel Industries 2009 (11) TMI 177 - CESTAT, CHENNAI LB - Decided in favor of assessee. Interference in the proceedings by the informer - Held that - Though, we feel strongly about writing of such letters by the informer Shri Bansal and are of the view that same amounts to pressurizing the Bench to arrive at the conclusion in a particular manner and are of the view that same amounts to contempt of Court, for which action can be taken against Shri Bansal but keeping in view the undertaking given by Shri Bansal that no such further interference would come from his side, we deem it fit to close the matter and to move ahead with proceedings inasmuch as hearing is at the last leg and number of days stand already devoted to the matter.

Summary

Issues Involved:

1. Allegation of clandestine removal of goods.
2. Allegation of undervaluation.
3. Incorrect availment of Cenvat Credit.
4. Imposition of penalties under Section 11AC and Rule 209A of the Central Excise Rules, 1944.
5. Confiscation and redemption fine.

Detailed Analysis:

1. Allegation of Clandestine Removal:

The duty demand of Rs. 7,83,39,361/- was based on documents A-1, A-4, A-5, A-6, A-10, and A-40. The appellant contended that no evidence was provided for the procurement of raw materials or transportation of finished goods, nor was there any discrepancy in stock found during searches. The Tribunal noted that clandestine removal charges must be supported by positive evidence, including unaccounted raw material procurement, production, and transportation. The Tribunal found that the Revenue failed to provide sufficient corroborative evidence and set aside the duty demand, except for Rs. 1,72,20,592/- which was remanded for re-adjudication.

2. Allegation of Undervaluation:

The duty demand of Rs. 5,56,12,785/- was based on documents indicating under-declaration of value and recovery of amounts over and above invoice prices. The Tribunal noted that during the period prior to 01.07.2000, the assessable value was the 'normal price' as per Section 4 of the Central Excise Act, 1944. For the period post-01.07.2000, the assessable value was the 'transaction value'. The Tribunal remanded the matter for re-adjudication to determine the correct assessable value and the quantum of duty demand.

3. Incorrect Availment of Cenvat Credit:

The demand of Rs. 6,47,926/- was based on credit notes issued by raw material suppliers for short receipt of inputs. The Tribunal, relying on the Larger Bench judgment in Bhuwalka Steel Industries Ltd., held that variations in weighment on different machines do not constitute real shortages and set aside the Cenvat Credit demand.

4. Imposition of Penalties:

The penalties under Section 11AC on the appellant company were set aside, with the Tribunal directing the Commissioner to re-determine penalties based on the outcome of the re-adjudication. Penalties under Rule 209A on employees were set aside, noting that they acted in their official capacity and did not deal with contraband goods knowingly. Penalties on the Managing Director and dealers were left to be decided in the re-adjudication.

5. Confiscation and Redemption Fine:

The order for confiscation of plant and machinery with an option to redeem on a fine of Rs. 2 Crores was not specifically addressed in the Tribunal's detailed analysis, implying it may be reconsidered in the remand proceedings.

Conclusion:

The Tribunal set aside the majority of the duty demands and penalties, remanding specific issues for re-adjudication to determine the correct assessable value and duty demand. The Tribunal emphasized the necessity of corroborative evidence for allegations of clandestine removal and undervaluation. The penalties on employees were set aside, and the penalties on the Managing Director and dealers were left to be determined based on the outcome of the re-adjudication. The Revenue's appeal against the dropping of a significant portion of the duty demand was rejected.